Chapman v. Tovar

2019 NY Slip Op 1848

Opinion

Chapman v Tovar (2019 NY Slip Op 01848)

Chapman v Tovar

2019 NY Slip Op 01848

Decided on March 14, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 14, 2019
Richter, J.P., Gische, Kern, Moulton, JJ.

8724 21457/13E

[*1]Mettie Alicia Chapman, Plaintiff-Respondent,

v

Winifred S. Tovar, M.D., et al., Defendants, St. Barnabas Hospital, Defendant-Appellant.

Garbarini & Scher, P.C., New York (Rita Aronov of counsel), for appellant.

Hasapidis Law Offices, Scarsdale (Annette G. Hasapidis of counsel), for respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered February 22, 2018, which, insofar as appealed from as limited by the briefs, in this action alleging medical malpractice, denied the motion of defendant St. Barnabas Hospital for summary judgment dismissing plaintiff's claim that St. Barnabas was vicariously liable for the negligence of defendant Dr. Tovar, unanimously affirmed, without costs.

St. Barnabas failed to make a prima facie showing of entitlement to summary judgment by demonstrating the absence of any material issues of fact as to whether Dr. Tovar was acting as its agent (see Malcolm v Mount Vernon Hosp., 309 AD2d 704, 706 [1st Dept 2003], lv dismissed 2 NY3d 793 [2004]). St. Barnabas also failed to show that the plaintiff could not have reasonably believed Dr. Tovar was acting at the hospital's behest (Malcolm at 706). Plaintiff and Dr. Tovar had no relationship prior to the emergency room visit that led to St. Barnabas referring plaintiff to Dr. Tovar, and questions of fact exist as to whether plaintiff was aware of the nature of Dr. Tovar's affiliation with St. Barnabas (see Shafran v St. Vincent's Hosp. & Med. Ctr., 264 AD2d 553, 557-558 [1st Dept 1999]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 14, 2019

CLERK